Speaker of the House, Brian Bosma and Senate President, David Long have announced that the marriage discrimination amendment (HJR 6) will not be heard, nor acted upon, this year. They pointed out that the U.S. Supreme Court will rule this spring on the issue of marriage equality and that it would be embarrassing for Indiana to have a ballot initiative on an amendment that had already been declared repugnant to the United States Constitution. If the two houses pass HJR 6 before the next election, there is no way to keep it off the ballot in November 2014, so they, and we, will await the pleasure of the court.
There is little doubt that the Supreme Court will find, one way or another, that Proposition 8 in California is unconstitutional and that the right to marry the person of your choice there must be respected. But there are several ways that their decision could be limited to California or to some states in the Ninth Circuit. Similarly there is little doubt that the court will find that the United States government must respect legal marriages from any state and treat citizens accordingly. But it is less clear that they must extend marriage equality to all the states, based on the cases in front of them.
There is a principle of judicial review, which I remember from my childhood, but which seems in recent years to have been honored more in the breach than in the observance, which enjoins the courts to draw the narrowest possible scope to their decisions. Recently I saw it cited by the United States Court of Appeals for the District of Columbia: “It is a well-settled principle of constitutional adjudication that courts ‘will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.'” In this case that means that if they can come to the right decision, or outcome, in the cases before them, which involve specific wrongs to specific people (and other similarly situated), then they should not take the opportunity to make sweeping pronouncements about other aspects of the laws before them, or other laws. To do that, by the way, would be judicial activism; not the act declaring an unconstitutional law invalid, which is their job, but the act of making judgments that are not necessary to rendering justice in the case in front of them, even if I wish they would do so.
When I was young, lawyers went mad trying to find the perfect case where the only way the court could decide would force the constitutional precedent they desired. They had to find a case where the only issue was the constitutional one. For example, this fall the court asked the lawyers in the Proposition 8 case to brief them about the question of whether the appellants had standing to appeal. If they did not, there was no valid appeal, even to the court of appeal; the original judgement would stand, and apply only to California. The court may have had other reasons to make that request, so it would be wrong to read too much in to it but that is one outcome that would do justice in the lawsuit filed in California, but would have absolutely no effect elsewhere. That is one reason why it is sometimes beneficial for the government to appeal a judgement even when it agrees with it. If there is a valid appeal to the Supreme Court, their judgement becomes the law of the land. If there is no appeal, the judgement is merely local precedent and useful in argument.
As I wrote above, it is no my sense that the court has been nearly so persnickety of late, so you might think, or hope, that they would decide these cases with a broad brush and declare any such limit on the fundamental right to marry the person of your choice, and be treated equally when you do so, unconstitutional. ‘Tis a consummation devoutly to be wished. But this court has signaled a sensitivity to public opinion, to political pressure, and a reluctance to make robust decisions. It is equally erroneous for a court to show too much deference to the legislator, nullifying the will of the people expressed in the constitution, expressly to constrain that legislator, as to overreach by making pronouncements that are not justified, not compelled, by the case in front of them.
So we will wait for the spring to find out if, for the nonce, spouses of federal employees will get benefits and people in California can marry irrespective of invidious classifications but the rest of us are untouched or if the struggle for marriage equality and with it the core of this chapter in the struggle for equal rights is over in this country. The legal issues in the cases before the court seem clear, but the question of scope and how the court will navigate the issues before it and pressures upon it are murky.
I had planned to write on how the decision of the House and the Senate will affect our lives in Indiana for the next year and more immediately for the next couple of months.This post is long enough and I will recur to my intention soon.